Dewan Nix v. State of Indiana (mem. dec.) ( 2016 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be May 17 2016, 9:04 am
regarded as precedent or cited before any
CLERK
court except for the purpose of establishing Indiana Supreme Court
Court of Appeals
the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Kimberly A. Jackson Gregory F. Zoeller
Indianapolis, Indiana Attorney General of Indiana
Chandra K. Hein
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Dewan Nix, May 17, 2016
Appellant-Defendant, Court of Appeals Case No.
34A02-1510-CR-1632
v. Appeal from the
Howard Superior Court
State of Indiana, The Honorable
Appellee-Plaintiff. William C. Menges, Jr., Judge
Trial Court Cause No.
34D01-1404-CM-274
Kirsch, Judge.
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[1] Dewan Nix pleaded guilty to invasion of privacy1 as a Class A misdemeanor
and, as part of his sentence, was ordered to pay a $1,300.00 reimbursement to
the Howard County Public Defender’s Supplemental Fund (“Public Defender
Fund”). Nix appeals his sentence and raises the following restated issues for
our review:
I. Whether the trial court properly released Nix’s bond from
another cause number when that case had been consolidated
with the present case; and
II. Whether the trial court abused its discretion when it ordered
Nix to pay $1,300.00 to reimburse the Public Defender Fund.
[2] We affirm.
Facts and Procedural History
[3] On April 20, 2014, Nix was located “at or near Main and Mulberry in Howard
County, Indiana” and “did knowingly or intentionally violate a no contact
order” by having contact with S.M. Appellant’s App. at 38. Nix was arrested,
and the State charged him with Class A misdemeanor invasion of privacy under
cause number 34D01-1404-CM-274 (“Cause 274”). The trial court set Nix’s
bond in Cause 274 at “$8,000.00 with 10% allowed,” and Nix paid an $800.00
1
See Ind. Code § 35-46-1-15.1.
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cash bond later that day. Id. at 23. He executed a bond agreement, which
stated:
CONDITIONS OF BOND: All bonds posted by defendants are
subject to the following conditions: (a) defendant shall appear in
Court at all times required by the Court; and (b) any other
condition ordered by the Court pursuant to I.C. 35-33-8-3.2(a)
including refraining from any direct or indirect contact with the
alleged victim of an offense or other individual as ordered by the
Court. Violation of any condition ordered by the Court may
result in revocation of bond and issuance of re-arrest warrant.
I agree that there is an administrative fee of 10%, up to $50.00, of
the 10% cash bond.
Cash bond is only released to the defendant in the case
following disposition of the case pursuant to I.C. 35-33-8-
3.2(b). The cash bond is considered the defendant’s asset and
will only be released to the defendant; and may be applied to
payment of fines, costs, fees, and restitution as ordered by the
court.
Id. at 30 (emphasis in original). At his initial hearing for Cause 274, Nix
requested the appointment of a public defender, which was granted by the trial
court. The trial court also “reserve[d] the right to order reimbursement to the
[Public Defender Fund].” Id. at 13.
[4] On April 29, 2014, Nix was arrested and charged with Class C felony
intimidation under cause number 34D01-1405-FC-330 (“Cause 330”). The trial
court set Nix’s bond in that case “in the sum of $10,000.00 with 10% allowed.”
Id. at 104. Nix again executed a bond agreement that was identical to the one
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executed in Cause 274 and paid $1,000.00 cash bond. Id. at 109. At his initial
hearing in Cause 330, Nix again requested the appointment of a public
defender, and the trial court granted the request. The trial court also ordered
Nix to “pay the sum of $100.00 to the [Public Defender Fund] within 30 days”
and reserved “the right to order [Nix] to pay additional fees.” Id. at 104-05.
[5] On June 25, 2014, the State filed a motion to continue the bench trial
previously set in Cause 274 “in order to allow the case to follow” Cause 330,
and the trial court granted the motion on the same date. Id. at 49. On June 18,
2015, Nix pleaded guilty to Class A misdemeanor invasion of privacy, and
pursuant to the plea agreement, the State agreed to dismiss his Class C felony
intimidation charge under Cause 330. Additionally, under the plea agreement,
the trial court sentenced Nix to one year, all suspended with credit for time
served, and Nix was placed on supervised probation for the duration of his
suspended sentence. Nix was also ordered to pay the Probation User’s Fees,
the Probation Administrative Fee, Court Costs, and a reimbursement to the
Public Defender Fund in the amount of $1,300.00. Id. at 9. Pursuant to the
conditions of supervised probation, Nix agreed, in writing, to the following:
FINANCIAL OBLIGATIONS: As part of your probation terms
various costs and fees are assessed for services provided and as a
measure of accountability. All payments will be in cash,
cashiers’ check, money order, or under certain circumstances,
credit cards. Any amount covered by your posted cash bond
must still be listed on this form. The Probation Administration
Fee and the $50.00 initial fee may be covered by posted cash
bond, however, in some cases the $15.00 monthly fee will not be
covered by your posted cash bond. In the case of multiple cause
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numbers, a Probation Fee will apply to each consecutive cause.
If financial obligations are not met by the termination date of
your probation the Howard County Probation Department may
file an Affidavit of Citation in which you may have to re-appear
in the sentencing Court to determine how payment of your fees
will be resolved. The Howard County Probation Department
further reserves the right to file for a summary judgment with an
agent for collections for any unpaid fees or costs.
Id. at 97. The conditions of probation, which were signed by Nix, further listed
the following as financial obligations Nix agreed to pay: $168.00 in court costs;
$50.00 as the initial probation fee; $1,300.00 to the Public Defender Fund;
$50.00 as a probation administrative fee; and “$15.00 per month thereafter” as
the monthly supervision fee. Id. Nix’s bond proceeds from both Cause 274 and
Cause 330 were released to pay the costs per the plea agreement and conditions
of probation. Nix filed a motion to correct error, which was denied by the trial
court. Nix now appeals.
Discussion and Decision
[6] Sentencing decisions, including decisions to impose restitution, fines, costs, or
fees, are generally left to the trial court’s discretion. Berry v. State, 950 N.E.2d
798, 799 (Ind. Ct. App. 2011) (citing Kimbrough v. State, 911 N.E.2d 621, 636
(Ind. Ct. App. 2009)). We will reverse only for an abuse of discretion – if the
sentencing decision is clearly against the logic and effect of the facts and
circumstances before the court, or the reasonable, probable, and actual
deductions to be drawn therefrom. McElroy v. State, 865 N.E.2d 584, 588 (Ind.
2007). “If the fees imposed by the trial court fall within the parameters provided
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by statute, we will not find an abuse of discretion.” Id. (citing Mathis v. State,
776 N.E.2d 1283, 1289 (Ind. Ct. App. 2002), trans. denied).
I. Consolidation of Cases
[7] Nix argues that the trial court violated Indiana Code section 35-33-8-3.2(b)
when it ordered the bond from Cause 330 be released to pay the costs and fees
ordered in Cause 274. He contends that the language of the statute required the
trial court to order the bond from Cause 330 returned to him because the bond
proceeds in each case may only be applied to the costs and fees ordered in that
particular case. Nix asserts that, because the charge in Cause 330 was
dismissed and was a separate and distinct case from Cause 274, Indiana Code
section 35-33-8-3.2 required the trial court to release the bond from Cause 330
to him within thirty days of the dismissal of the case. Because the trial court did
not release the bond to him, it violated the statute.
[8] Indiana Code section 35-33-8-3.2 governs bail and bail forfeiture. Dillman v.
State, 2 N.E.3d 774, 776 (Ind. Ct. App. 2014). Under subsection (a) of the
statute, there are two further subsections, and the first of these subsections
permits a person to post a cash bond in the full amount of the bail. Ind. Code §
35-33-8-3.2(a)(1). The second subsection states in pertinent part:
(a) A court may admit a defendant to bail and impose any of the
following conditions to assure the defendant’s appearance at any
stage of the legal proceedings, or, upon a showing of clear and
convincing evidence that the defendant poses a risk of physical
danger to another person or the community, to assure the
public’s physical safety:
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....
(2) Require the defendant to execute:
(A) a bail bond by depositing cash or securities with the clerk of
the court in an amount not less than ten percent (10%) of the bail;
and
(B) an agreement that allows the court to retain all or a part of
the cash or securities to pay fines, costs, fees, and restitution that
the court may order the defendant to pay if the defendant is
convicted.
A portion of the deposit, not to exceed ten percent (10%) of the
monetary value of the deposit or fifty dollars ($50), whichever is
the lesser amount, may be retained as an administrative fee. The
clerk shall also retain from the deposit under this subdivision
fines, costs, fees, and restitution as ordered by the court, publicly
paid costs of representation that shall be disposed of in
accordance with subsection (b), and the fee required by
subsection (d).
I.C. § 35-33-8-3.2(a)(2). Subsection (a)(2) offers an alternative to paying the full
bail amount – a defendant may post only ten percent of the bail, but “that
amount is subject to retention by the clerk of the court for the reimbursement of
publicly paid costs of representation.” Dillman, 2 N.E.3d at 766; I.C. § 35-33-8-
3.2(a)(2). In the present case, Nix paid ten percent of the bail amount, so he is
governed by subsection (a)(2), and the ten percent of his bail that he paid was
able to be retained to reimburse the costs of his publicly paid representation.
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[9] Nix asserts that the funds he paid under Cause 330 should not have been
retained here because he was only convicted under Cause 274, and the two
cases were separate and distinct with the bond document in each case being
specific to each case. We disagree. Initially, we note that his two cases were
consolidated by the trial court, and he failed to object when such consolidation
occurred; he has therefore waived any objection to the consolidation of his two
cases. Wilson v. State, 931 N.E.2d 914, 919 (Ind. Ct. App. 2010) (“The failure to
raise an issue at trial waives the issue on appeal.”), trans. denied.
[10] Nix was charged with invasion of privacy under Cause 274 and, a few days
later, was charged under Cause 330 with intimidation. On June 25, 2014, the
State filed a motion to continue the bench trial previously set in Cause 274 “in
order to allow the case to follow” Cause 330, and the trial court granted the
motion on the same date. Id. at 49. Thereafter, motions, orders, and minute
entries for the cases contained the cause numbers for both cases, and the
Chronological Case Summary for Cause 330 indicated that it was consolidated
with Cause 274. Appellant’s App. at 62-66, 106. The plea agreement, which was
signed by Nix, contained both cause numbers. Id. at 71. In both Cause 274
and Cause 330, Nix requested, at the initial hearing, that a public defender be
appointed to represent him, which the trial court granted and informed Nix, at
that time, that it was reserving the right to order reimbursement to the Public
Defender Fund. Id. at 13, 104-05. Therefore, during the course of the
proceedings, Cause 274 and Cause 330 were consolidated, and pursuant to
Indiana Code section 35-33-8-3.2(a)(2), the trial court was authorized to order
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that Nix’s posted bonds be retained to reimburse the costs of his publicly paid
representation under the two cases when Nix pleaded guilty to invasion of
privacy. The trial court did not abuse its discretion when it consolidated the
publicly paid costs of Nix’s representation for two consolidated cases and
ordered that bond proceeds from both Cause 274 and Cause 330 be retained to
pay the Public Defender Fund.
II. Amount of Reimbursement
[11] Nix contends that the trial court abused its discretion when it ordered him to
pay $1,300.00 to reimburse the Public Defender Fund. He alleges that the
imposition of such a fee was not authorized by any Indiana statutes.
Specifically, Nix claims that the pertinent statutes require an indigency hearing
before public defender fees may be imposed and that the trial court here never
made any determination that he was not indigent and therefore able to pay the
reimbursement to the Public Defender Fund. To the contrary, Nix asserts that
the trial court found he was unable to afford to pay for his counsel when it
appointed a public defender to represent him in the proceedings.
[12] We initially note that Nix invited any alleged error when he agreed to
reimburse the Public Defender Fund in the amount of $1,300.00 as a condition
of his probation. Appellant’s App. at 97-98. The doctrine of invited error is
grounded in estoppel. Arthur v. State, 950 N.E.2d 343, 347 (Ind. Ct. App. 2011),
trans. denied. “[U]nder this doctrine, ‘a party may not take advantage of an
error that she commits, invites, or which is the natural consequence of her own
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neglect or misconduct.’” Id. (quoting Wright v. State, 828 N.E.2d 904, 907 (Ind.
2005)). Invited error is not subject to appellate review, and a party may not
invite error and later argue that such error requires reversal. Pinkton v. State,
786 N.E.2d 796, 798 (Ind. Ct. App. 2003), trans. denied. Here, Nix agreed to
serve his suspended sentence on supervised probation pursuant to his plea
agreement, and as a condition of his probation, he agreed to pay $1,300.00 to
the Public Defender Fund. Appellant’s App. at 71, 97-98. Nix cannot now argue
that it was error to order him to pay a fee that he agreed to pay as a condition of
his probation.
[13] Even if Nix did not invite any alleged error, the trial court did not abuse its
discretion in ordering him to reimburse the Public Defender Fund in the
amount of $1,300.00. In both Cause 274 and Cause 330, Nix posted ten
percent of his bail. Pursuant to Indiana Code section 35-33-8-3.2(a)(2), when a
defendant pays ten percent of his bail, “that amount is subject to retention by
the clerk of the court for the reimbursement of publicly paid costs of
representation.” Dillman, 2 N.E.3d at 766. Therefore, the trial court in the
present case was authorized under Indiana Code section 35-33-8-3.2(a)(2) to
order Nix to reimburse the Public Defender Fund to pay for the costs of his
publicly-provided representation. Wright v. State, 949 N.E.2d 411, 416 (Ind. Ct.
App. 2011). Further, contrary to Nix’s contention, an indigency hearing was
not required in the present case. “A plain reading of [s]ection 35-33-8-3.2(a)(2)
. . . leads us to the conclusion that the absence of language requiring an
indigency hearing means that when a bail bond agreement is executed, such a
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hearing is not required.” Id. (citing State v. Dugan, 793 N.E.2d 1034, 1036 (Ind.
2003) (“It is just as important to recognize what the statute does not say as it is
to recognize what it does say.”)). To impose the hearing requirement contained
in other statutes where a defendant executed an agreement pursuant to Section
35-33-8-3.2(a)(2), would render the bail bond agreement meaningless. Id. We,
therefore, conclude that the trial court did not abuse its discretion when it
ordered Nix to pay $1,300.00 to reimburse the Public Defender Fund.
[14] Affirmed.
[15] Riley, J., and Pyle, J., concur.
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